NLRB Holds Policy Banning “Negative Comments” and Requiring “Positive and Professional” Behavior Is Unlawful

The National Labor Relations Board (NLRB) recently held that an employer’s policy prohibiting “negative comments” and requiring “positive and professional” behavior was unlawful. The employer, Hills and Dales General Hospital, developed the policy in response to a poor working environment that was permeated with “back-biting and back stabbing.” Employee satisfaction was low, employees were looking for jobs elsewhere, and patients were seeking health care outside the hospital. As a result, the hospital set up a team of employees to develop a statement of values and standards of employee behavior, which contained the following paragraphs:

11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

The hospital asked employees to sign poster-sized copies of the policy. The hospital then framed the posters and placed them in the lobby where patients could see them. Following the policy’s implementation, the hospital experienced improvements in employee and patient satisfaction, as well as its ability to attract and retain personnel. However, on November 15, 2011, the NLRB General Counsel filed a complaint against the hospital alleging that the policy violated Section 8(a)(1) of the National Labor Relations Act (NLRA), which makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. Under Section 7, employees have the right to engage in concerted activities for their mutual aid or protection.

In an April 1, 2014 decision, the Board held that the prohibitions of “negative comments” and “negativity” and the requirement that employees “represent [the hospital] in the community in a positive and professional manner” were unlawful. According to the Board, the hospital’s policy was “overbroad and ambiguous,” and employees could reasonably view the policy as preventing them from engaging in any public activity or making any public statements that were not perceived as “positive” towards the hospital. This could discourage employees from protesting unfair labor practices or their terms and conditions of employment — activities that are protected by Section 7. The Board rejected the hospital’s argument that the policy was valid because employees were involved in drafting the rules.

This decision follows a recent pattern of the Board finding that common employer policies are overly broad and in violation of the NLRA. It is important for employers to periodically review their policies with assistance from legal counsel to avoid a charge of unfair labor practices. 

Contact: Nathan Pangrace


Fifth Circuit Rules That Employer’s Overly Broad Confidentiality Policy Unlawfully Restricts Employees’ Right to Discuss Wages

In Flex Frac Logistics, LLC v. NLRB (March 24, 2014), the Fifth Circuit Court of Appeals upheld a National Labor Relations Board (“NLRB”) ruling that struck down an overly broad employer confidentiality policy. The court held that this overly broad policy could be interpreted as prohibiting an employee from discussing his wages with others – a right specifically protected by the National Labor Relations Act (“NLRA”).

At issue in that case was an employer confidentiality policy that prohibited employees from disclosing information that included “financial information.” In its original decision, the NLRB noted that this “financial information … necessarily includes wages and thereby reinforces the likely inference that the rule proscribes wage discussion with outsiders.” The Fifth Circuit agreed with this reasoning, further noting that the policy failed to exclude wages in this definition. The Fifth Circuit explained that without this specific exclusion, it is even more likely that an employee could interpret this policy as restricting his ability to discuss his wages with others.

In this ruling, the Fifth Circuit noted that although the policy at issue did not expressly prohibit employees from discussing their wages with others, a workplace rule can still violate the NLRA if an employee could reasonably construe that rule to prohibit employees from engaging in activities protected under the NLRA (here, the employees’ ability to discuss their wages with others).

The take away from this case is that overly broad employer policies will face increased scrutiny under the NLRA. This is especially true with policies that an employee could reasonably interpret as restricting his ability to discuss his wages with others. Employers should be mindful of this and other NLRA rulings when crafting their employment policies.

Contact: Shawn Romer